cormacburke.me.ke

(Opening address to the Canadian Canon Law Society Convention, St. John's, Newfoundland, October, 1997) [published: Forum: 9 (1998) 2: pp. 65-82]

            If I am glad to have been invited to speak on a topic other than canon 1095, the reason is certainly not any feeling that the last word has been said on consensual incapacity. It is simply because of a personal conviction that there are more null marriages today through simulation of consent, than through incapacity for it.

            The jurisprudence of church tribunals has constantly held that the marriage consent from which offspring is intentionally excluded ("bono prolis excluso") is null. A recent rotal Sentence coram Stankiewicz, in expressing this principle, says that it is the exclusion of the procreative element which vitiates the very object of matrimonial consent: "Since the procreative element enters the essence of matrimony and represents an essential component of the formal object of matrimonial consent, no one of the contracting parties can deliberately exclude it without thereby invalidating the marriage itself" (coram Stankiewicz, 29 October, 1987, n. 3).

"Giving oneself"

            The obvious answer to the question "what is the object of matrimonial consent?", is, "marriage itself". Just as obviously, however, this is not very enlightening from the juridic viewpoint which is interested in pinning down the specific, and above all the essential, rights and obligations that consent gives rise to.

            The 1917 Code of Canon Law described matrimonial consent as that "act of the will by which each party gives and accepts a perpetual and exclusive right over the body, for acts which are of themselves suitable for the generation of children" (1917 Code: canon 1081, # 2.). The 1983 Code describes this consent in apparently very different terms: it is that "act of the will by which a man and a woman, through an irrevocable covenant, mutually give and accept each other in order to establish a marriage" (1983 Code: canon 1057, # 2. ).